May 25, 2013

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SB 13-198: Allowing Closure of Court to Public when Sexually Exploitative Materials or Forensic Interviews Related to a Child are Being Presented

March 22, 2013 by Leave a Comment

On Wednesday, February 27, 2013, Sen. Cheri Jahn introduced SB 13-198 – Concerning Closing a Court to the Public When Sexually Exploitative Material Related to a Specific Child is Being Presented as Evidence. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill provides a court with the option to close the court to the public, when it is in the best interest of a child, when images of sexually exploitative materials or forensic interviews directly related to that child are being presented as evidence in court and the child or forensic interviewer is on the witness stand. On March 13, the Judiciary Committee amended the bill and sent it to the 2nd Reading Consent calendar for consideration by the full Senate.

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Colorado Court of Appeals: Plain Language of C.R.S. § 18-1.3-202 Allows Incarceration for Each Specific Grant of Probation

March 7, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Gravina on Thursday, February 28, 2013.

Deferred Judgment and Sentence—Sexual Exploitation of a Minor—CRS § 18-1.3-202.

Defendant appealed the trial court’s judgment revoking his deferred judgment and sentence, entering a judgment of conviction, and sentencing him for the crime of sexual exploitation of a minor. The judgment and sentence were affirmed.

In December 2010, defendant pleaded guilty to sexual exploitation of a child, a class 5 felony, for possessing nude photographs of his 17-year-old girlfriend. Pursuant to the plea agreement, the trial court granted defendant a deferred judgment and sentence for four years. Defendant agreed to complete Sex Offender Intensive Supervision Probation (SOISP) and other conditions, one of which was that he could not have “possession or have any contact with any form of . . . [m]aterial that contains nudity, sexual themes, and sexually explicit or violent images.”

In February 2011, defendant’s probation officer searched defendant’s house. She found a Hooters calendar and aMaxim magazine. She also found photographs of defendant with a naked woman and nine pornographic movies. This resulted in defendant being removed from his treatment program.

After a hearing, the trial court found defendant in violation of his probation and revoked his deferred judgment and sentence, and sentenced him to five years of SOISP. In addition, he was to serve ninety days in jail, with sixty days suspended and credit for one day served.

Defendant contended it was error to commit him to ninety days in jail after he had already been committed to ninety days in jail as a condition of his initial probation, because CRS § 18-1.3-202 allows only an aggregate of ninety days in jail as a condition of probation for any single conviction. The Court of Appeals disagreed. The Court found the plain language of CRS § 18-1.3-202 to allow a trial court to include as a condition of probation a commitment to jail for up to the maximum number of days permitted by statute. The ninety-day limit applies to each specific grant of probation and not to the sentencing for the underlying crime.

Defendant also argued it was error to revoke his deferred judgment because the terms of his probation were unconstitutionally vague as applied to the magazine and calendar, and the prosecution failed to prove that he knowingly possessed the movie and photos. The Court found no error. Defendant’s probation prohibited him from possessing “sexually oriented or sexually stimulating material.” Though neither the calendar nor the magazine was part of the record, the Court presumed the trial court was correct that they were sexually oriented or stimulating within the meaning of the probation condition. As for proving “knowing” possession, the Court found the record supported such a finding.

Summary and full case available here.

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Tenth Circuit: District Court’s Denial of Qualified Immunity to Prison Warden Affirmed

February 14, 2013 by Leave a Comment

The Tenth Circuit published its opinion in Keith v. Koerner on Tuesday, February 12, 2013.

Tracy Keith was an inmate at the Topeka Correctional Facility (“TCF”), an all-female state prison, between 2006 and 2010.  While there, she participated in a vocational training program. Her instructor, Ananstacio Gallardo, engaged in unlawful sexual acts with Ms. Keith, and she became pregnant. The pregnancy was terminated. Mr. Gallardo ultimately pled guilty to a charge of unlawful sexual relations and two charges of trafficking contraband.

Ms. Keith filed a civil rights complaint pursuant to 42 U.S.C. § 1983, alleging violations of her rights under the Eighth Amendment. She named as Defendants former warden Richard Koerner and other Kansas Department of Corrections employees. Defendants filed a motion to dismiss, arguing in part that they were entitled to qualified immunity. The district court granted qualified immunity to all Defendants except Mr. Koerner and Mr. Gallardo and entered a default judgment against Mr. Gallardo. Mr. Koerner appeals from the district court’s denial of qualified immunity.

In resolving a motion to dismiss based on qualified immunity, the court considers (1) whether the facts that a plaintiff has alleged make out a violation of a constitutional right, and (2) whether the right at issue was clearly established at the time of defendant’s alleged misconduct.

As an initial matter, it is clearly established that a prison official’s deliberate indifference to sexual abuse by prison employees violates the Eighth Amendment. The question is whether Ms. Keith alleged facts sufficient to support such a deliberate indifference violation by Mr. Koerner. To state a claim, a plaintiff must only allege enough factual matter in her complaint to make her claim to relief plausible on its face and provide fair notice to a defendant.

Ms. Keith alleged facts that could tend to establish that Mr. Koerner was responsible for managing TCF and knew about multiple instances of sexual misconduct at TCF over a period of years, inconsistently disciplined corrections officers who engaged in prohibited sexual conduct with inmates and thus purportedly tolerated at least an informal policy which permitted sexual contact between prison staff and inmates. After reviewing the complaint, the Tenth Circuit concluded that Ms. Keith provided notice and nudged her claims beyond the conceivable to the plausible given that the Court had to accept accept the well-pleaded allegations as true.

Because Ms. Keith alleged facts sufficient to state a plausible claim for relief and survive a motion to dismiss, the district court’s denial of qualified immunity is AFFIRMED.

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HB 13-1020: Developing Standards and Protocols for Collection and Processing of Evidence of Sexual Assault

January 31, 2013 by Leave a Comment

On January 9, 2013, Rep. Frank McNulty and Sen. Ellen Roberts introduced HB 13-1020 - Concerning Evidence Collected in Connection with a Sexual Assault. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill requires the executive director of the department of public safety to adopt rules concerning forensic medical evidence of a sexual assault (forensic evidence) collected by law enforcement agencies. The rules shall include:

  • Standards for when forensic evidence must be submitted by law enforcement agencies to the Colorado bureau of investigation or another accredited crime laboratory (laboratory); and
  • Time frames for when the forensic evidence must be submitted, analyzed, and compared to DNA databases.

The bill requires the consent of the victim prior to the release of forensic evidence following disclosure of the purpose for the release and allows the victim to withdraw consent.

To resolve the backlog of unanalyzed forensic evidence, the bill requires:

  • Law enforcement agencies to submit to the Colorado bureau of investigation (CBI) an inventory of all unanalyzed forensic evidence in active investigations that meets the standard for mandatory submission; and
  • The CBI to submit a plan to analyze all of the forensic evidence inventories by law enforcement agencies.

A law enforcement agency may develop its own plan to analyze forensic evidence if the evidence will be analyzed by June 30, 2014. The bill is assigned to the Judiciary and Appropriations Committees.

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Colorado Court of Appeals: Trial Court Properly Denied Defendant’s Challenges for Cause of Prospective Jurors

January 22, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Fleischacker on Thursday, January 17, 2013.

Sexual Assault on a Child—Challenge for Cause—CRS § 16-10-103(1)(b)—Double Jeopardy.

Defendant appealed the judgment of conviction entered against him after a jury found him guilty of sexual assault on a child, position of trust; sexual assault on a child, pattern of abuse; and sexual assault on a child. The judgment was affirmed.

Defendant contended that the trial court erred in denying his challenge for cause against Juror G. Juror G. told the court that he had worked in law enforcement for four-and-a-half years; that his daughter was a paralegal at the district attorney’s office; that his son worked for the Denver sheriff’s office; and that his son-in-law was a parole officer. He also stated that the prosecuting attorney had attended his daughter’s wedding the previous month. CRS § 16-10-103(1)(b) does not require the disqualification of a prospective juror related within the third-degree to a paralegal working in a district attorney’s office. Because Juror G.’s daughter was not an attorney, the trial court did not err in denying defendant’s challenge for cause under CRS §16-10-103(1)(b). Further, the trial court did not abuse its discretion in finding that Juror G. was not actually biased because of his numerous connections to law enforcement based on Juror G’s assurances to the court that he could hold the prosecution to its burden of proof and that he would be impartial to both sides.

Defendant also contended that the trial court erred in denying his challenge for cause against Juror J. Juror J.’s daughter was sexually assaulted by his brother-in-law when she was approximately 15 years old. Based on Juror J’s assurances that he could be fair in this particular case, could listen to the court’s instructions, and could hold the prosecution to its burden of proof, the trial court did not abuse its discretion in denying defendant’s challenge for cause to Juror J.

Defendant also argued that his convictions for Counts 2 and 3 violated his right to be free from double jeopardy because they were predicated on the same factual basis. The evidence demonstrated that defendant was not convicted twice for the same offense because there were factually distinct incidents of sexual assault. The predicate act for Count 2 was defendant touching the victim’s buttocks with his hand, and the predicate act for Count 3 was touching the victim’s buttocks with defendant’s lap. Any clerical error on the verdict forms did not undermine the fundamental fairness of the trial. Accordingly, the convictions for those counts did not violate defendant’s right to be free from double jeopardy.

Summary and full case available here.

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Tenth Circuit: Postconviction Discovery Motion Does Not Toll Statute of Limitations for Filing Certificate of Appealability Application

September 11, 2012 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in Woodward v. Clline on Friday, September 7, 2012.

In 1991, applicant David Woodward pleaded guilty in Kansas state court to kidnapping, two counts of sexual exploitation of a child, rape, indecent liberties with a child, and felony murder. In 1994, he filed a motion requesting DNA testing for the purpose of his exoneration. It was unclear to the Court whether that motion was ever ruled upon. After filing various motions in state court in the intervening years, in 2011, Woodward filed in federal district court a certificate of appealability (COA) application alleging the COA one-year statute of limitations had not run because no court had ever ruled on his motion requesting DNA testing from 1994. Because the Tenth Circuit held that a postconviction discovery motion does not toll the limitations period for filing a COA § 2254 application, the Court denied the application for a COA and dismissed the appeal.

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Tenth Circuit: Mandatory Minimum Sentence for Distribution of Child Pornography Affirmed; Remainder Dismissed for Lack of Subject Matter Jurisdiction

August 28, 2012 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in United States v. Ramos on August 27, 2012.

Mr. Ramos plead guilty to “knowingly and intentionally receiv[ing] . . . [child pornography]” in violation of 18 U.S.C. § 2252(a)(2). The Court sentenced Mr. Ramos to eighty-seven months in prison in accordance with § 2G2.2(b)(3)(B), sentencing Guidelines that mandated a 5-year mandatory minimum prison sentence.  Mr. Ramos appealed.

On appeal, Mr. Ramos raised two issues. First, he contended that there was an insufficient basis for the district court to conclude that he “distributed” child pornography under § 2G2.2(b). Second, he argued that the mandatory-minimum sentence applied to his case violated the Equal Protection Clause of the Fifth Amendment and the Sixth Amendment.

The Tenth Circuit dismissed Mr. Ramos’ first argument as unpersuasive, holding that the district court properly ruled Mr. Ramos’ behavior constituted “distribution” of child pornography.  The Tenth Circuit dismissed the remainder of his appeal involving his constitutional challenges for lack of standing and therefore subject matter jurisdiction.

 

 

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Colorado Court of Appeals: No Abuse of Discretion in Finding that DNA Evidence and Procedures Used by Expert Were Reliable

August 6, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Tunis on August 2, 2012.

Sexual Assault—DNA Evidence—Jury—Sexually Violent Predator.

Defendant appealed from the judgment of conviction and sentence in this sexual assault case. The judgment and sentence were affirmed.

The victim was sexually assaulted in her home. Defendant ultimately was convicted of sexual assault and second-degree burglary, both class 3 felonies, and sentenced to the Department of Corrections for an indeterminate term of twelve years to life. His sentence included a determination that he qualified as a sexually violent predator.

Defendant contended that the Y Chromosome-Short Tandem Repeat (Y-STR) DNA evidence, which was admitted through expert testimony, was unreliable and, therefore, the trial court erred by admitting it. The analyst who conducted the testing and testified about it was properly qualified and admitted as an expert in forensic DNA analysis. The analyst testified that she used a generally accepted scientific metric for conducting the Y-STR analysis. The Court of Appeals concluded that the trial court did not abuse its discretion in finding that the exclusion statistics and the sample size of DNA that the expert used were reliable. Therefore, the trial court did not abuse its discretion in admitting this evidence.

Defendant also contended that the trial court erred by releasing a juror who repeatedly fell asleep and replacing him with an alternate juror. Defendant failed to show that the remaining jurors were unfair or biased, or that he was prejudiced by the dismissal and replacement of the juror. Therefore, the court’s decision to replace the sleeping juror was not an abuse of discretion.

Finally, defendant contended that the trial court erred by determining he was a sexually violent predator within the meaning of CRS § 18-3-414.5(1)(a)(III). The court concluded that defendant was a sexually violent predator because he promoted a relationship with the victim primarily for the purpose of sexual victimization. Further, defendant threatened the victim in an effort to keep her quiet during the assault, pulled her hair, and repeatedly forced her head into a position from which she could not see him during the assault. Thus, the evidence at trial supports the court’s conclusion. The judgment and sentence were affirmed.

Summary and full case available here.

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Colorado Court of Appeals: Prohibitions on Sexual Contact and Possessing Pornography Reasonably Related to Rehabilitation and Purposes of Probation

July 23, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Lientz on July 19, 2012.

Probation—Revocation—Sexual Exploitation of a Child—Sexual Assault—Unconstitutional—Due Process—Aggravated Sentencing.

Defendant appealed the district court’s order revoking his probation and the sentences imposed. The order was affirmed, the sentences were vacated, and the case was remanded.

Defendant pleaded guilty in Case No. 01CR1323 to two counts of sexual exploitation of a child and one count of sexual assault on a child by one in a position of trust. Defendant also pleaded guilty in Case No. 01CR1348 to sexual exploitation of a child. Defendant’s probation was revoked for failing to comply with the requirements of his probation, and the court sentenced defendant to two concurrent indeterminate terms of fifteen years to life imprisonment in the custody of the Department of Corrections (DOC).

Defendant contended that the district court committed plain error in failing to conclude at the probation revocation hearing that two of the probation conditions he violated—the conditions prohibiting sexual contact without prior approval and possessing pornography—are not statutorily or constitutionally authorized. By possessing pornography and engaging in sexual relationships plainly relate to sex, defendant committed sex crimes, and the testimony of defendant’s treatment provider and probation officer supported these conditions. Accordingly, the district court did not commit error by failing to conclude that the two challenged probation conditions were not reasonably related to defendant’s rehabilitation and the purposes of probation under CRS § 18-1.3-204(2)(a)(XV). Further, defendant failed to assert any facts to support his claim that the challenged conditions violated his constitutional rights to liberty, privacy, and freedom of association, nor did he present any argument to show that the prohibition of possession of pornography was unconstitutionally overbroad. Finally, the probation requirements prohibiting “sexual contact” and “possession of pornography” were not unconstitutionally vague.

Defendant also contended that the district court violated his right to due process by not stating the reasons for revoking his probation or citing the evidence on which the court relied. However, the court specifically cited the evidence it relied on—the testimony of defendant’s probation officer and his treatment provider. Although lacking specificity, the court’s findings were sufficient under these circumstances because the evidence was uncontroverted. Accordingly, the court did not violate defendant’s right to due process.

Defendant further argued, the People conceded, and the Court of Appeals agreed that the sentences must be vacated and the case remanded for resentencing because the district court imposed aggravated sentences without making the necessary findings under CRS § 18-1.3-401(6) and (7). Therefore, the sentences were vacated and the case was remanded to the court to determine whether aggravated sentencing was appropriate.

Summary and full case available here.

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Colorado Court of Appeals: Abuse of Discretion in Denying Petition to Discontinue Registration as Sex Offender

July 9, 2012 by Leave a Comment

The Colorado Court of Appeals issued its decision in People v. Carbajal on July 5, 2012.

Sex Offender Registration—Deferred Judgment—Dismissal.

Defendant appealed the trial court’s order denying his petition to discontinue sex offender registration. The order was reversed and the case was remanded to the trial court with directions to grant defendant’s petition.

On August 30, 2001, defendant entered guilty pleas in several cases, including a charge of second-degree sexual assault in this case, and the trial court imposed a deferred judgment with four years’ supervision to run consecutively to the prison term in a Montrose case for drug possession and bail violation. Defendant’s parole in the Montrose case subsequently was revoked, and he returned to prison. The People filed a petition to revoke defendant’s deferred judgment in this case, and as a result, the court extended defendant’s deferred judgment to July 2010. The Supreme Court later issued a decision dismissing defendant’s case entirely, finding that the trial court exceeded its jurisdiction in extending the deferred judgment. The trial court subsequently denied defendant’s petition to discontinue sex offender registration because defendant failed to complete sex offender treatment, failed to pay restitution, and later was convicted of trespass.

On appeal, defendant argued that the trial court erred in denying his petition to discontinue sex offender registration. When defendant’s deferred judgment terminated as a matter of law on August 30, 2005, four years after defendant’s guilty plea, the court implicitly found that all of the probationary obligations associated with the deferred judgment also ended, including the requirement to complete sex offender treatment and to pay restitution. Accordingly, to hold defendant responsible for fulfilling conditions that he no longer was legally obligated to complete was an abuse of discretion by the trial court. Therefore, the trial court abused its discretion in denying defendant’s petition for an order to discontinue the requirement that he register as a sex offender.

Summary and full case available here.

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Colorado Court of Appeals: Sexual Assault Nurse Examination Proximately Caused by Defendant’s Conduct and Cost Should Have Been Included in Restitution Order

June 25, 2012 by Leave a Comment

The Colorado Court of Appeals issued its decision in People v. Montanez on June 21, 2012.

Restitution Order—Sexual Assault Nurse Examiner Evaluation.

The prosecution appealed from the district court’s restitution order against defendant. The order was affirmed in part and reversed in part, and the case was remanded.

Defendant was discovered having sexual intercourse with a 14-year-old girl by the girl’s mother and brother; defendant was 19 years old at the time. The mother contacted the authorities, and defendant was arrested. The following day, the mother decided on her own to take the child to the hospital to be examined. A sexual assault nurse examiner (SANE) evaluated the child for any injuries, gave her antibiotics and a pregnancy test, and discussed safe sexual practices with her. Defendant pleaded guilty to sexual assault on a child in exchange for the dismissal of the more serious class 3 felony charge. The district court included the costs of the antibiotics and the pregnancy test in the restitution order but declined to include the cost of the SANE examination.

On appeal, the prosecution contended that the district court erred in denying its request to include the cost of the SANE examination in the restitution order. The statutes require full compensation of a “victim’s” pecuniary losses. Here, law enforcement did not request the SANE examination, so they are not responsible for payment to the hospital. The child and her mother are “victims” for restitution purposes. Additionally, the hospital is a victim, because it had a contractual relationship with the mother. Because the cost of the SANE examination was proximately caused by defendant’s conduct, the cost of the SANE examination should have been included in the restitution order.

Summary and full case available here.

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Colorado Supreme Court: Evidence of Specific Instances of Victim’s Previous Sexual Activity Properly Excluded

June 18, 2012 by Leave a Comment

The Colorado Supreme Court issued its opinion in Pierson v. People on June 18, 2012.

Rape Shield Statute—Relevancy of Evidence.

Defendant sought review of the court of appeals’ judgment affirming his various convictions of felony sexual assault on a child and indecent exposure. The district court denied defendant’s pre-trial motion to admit evidence of the child’s similar victimization by a teenage cousin during the same time period. The court of appeals upheld the trial court’s ruling, finding that the proffered evidence of prior sexual contact did not fall within the rape shield exception for the source of semen, pregnancy, disease, or similar evidence of sexual intercourse, and that it was not relevant for any of the other purposes offered by defendant.

The Supreme Court affirmed the judgment of the court of appeals. The Court found that the proffered evidence amounted to evidence of specific instances of the victim’s previous sexual activity, which was neither included within the exception for alternate sources of semen, pregnancy, disease, or similar evidence, nor otherwise sufficiently probative as an alternate explanation for the victim’s sexual knowledge or pain. Therefore, the trial court did not abuse its discretion in excluding the proffered evidence.

Summary and full case available here.

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